Are we already in re-run season?
How else to explain this latest move from Manhattan DA Alvin Bragg? The last we heard from Bragg on the Trump front, the newly elected progressive had angered his own team nine months ago by shutting down the prosecution of Donald Trump started under predecessor Cyrus Vance. Two prosecutors resigned in protest over Bragg’s decision to pull the plug on the criminal prosecution, although Bragg had decided that the team lacked enough evidence and testimony to go to court.
Progressives who had elected Bragg angrily ripped that decision. Now Bragg wants to get back in the Trump-prosecution game again, this time by returning to an old story that had played out long before Bragg arrived on the scene — and that has already proven tiresome:
Under the new district attorney, Alvin L. Bragg, the prosecutors have returned to the long-running investigation’s original focus: a hush-money payment to a porn star who said she had an affair with Mr. Trump.
The district attorney’s office first examined the payment to the actress, Stormy Daniels, years ago before changing direction to scrutinize Mr. Trump’s broader business practices. But Mr. Bragg and some of his deputies have recently indicated to associates, supporters and at least one lawyer involved in the matter that they are newly optimistic about building a case against Mr. Trump, the people said. …
For Mr. Bragg, the hush-money developments suggest the first signs of progress since he took office at the beginning of the year, when he balked at indicting Mr. Trump in connection with his business practices.
But in bringing the inquiry full circle to the hush-money payment, Mr. Bragg is focusing on an aspect of the investigation that previously failed to bear fruit.
In other words, this is entirely political. Bragg needs to atone for the crime of dropping the earlier case, and now he needs to look at least as tough as Merrick Garland. To do that, however, he’s rehashing a case that went nowhere the first time on a federal level and would go even less far on the state level.
The original issue with the payoff (to which Trump more or less admitted) was that it came in the context of a presidential campaign. It is not illegal for people to exchange money for a non-disclosure agreement; in fact, it’s fairly common. The only reason this one mattered is that it was pretty clear that Trump arranged it to protect his campaign, and that the money might have come from donors. Either way, that would have made it an undisclosed contribution, which at worst is a civil issue with the Federal Elections Commission. The only other time this type of arrangement had been treated as a criminal issue was when the Department of Justice tried John Edwards for a nearly identical kind of payoff, and a jury rebuked prosecutors and cleared Edwards for criminal wrongdoing.
Even on that issue, the Karen McDougal case was more legally threatening than the Stormy Daniels payoff. And that went nowhere, too.
So what does Bragg think will be the crime on a state level? Aggravated non-disclosure agreeing? Bragg will likely argue fraud, but that has big problems too. Who got defrauded in this transaction? Daniels got her cash, Trump got his silence for a while, and the only real issue on fraudulent intent involves disclosures in federal elections, which is in federal rather than state jurisdiction.
Andrew McCarthy can’t figure it out either, nor Bragg’s interest in rehashing a loser case, which — by the way — is already arguably past its statute of limitations:
It seems boneheaded to reopen this sordid business. Put aside that the Trump matter is trivial compared to surging violent crime in the Big Apple which, to the increasing anger of New Yorkers, Vance’s successor Alvin Bragg is quite lax in prosecuting. Assuming that fraud is the theory of the new/old case, the statute of limitations in New York law is six years. Cohen paid Clifford over six years ago. But let’s assume, for argument’s sake, that the scheme is deemed to have extended a few months beyond 2016 because Trump did not reimburse Cohen until August 2017. Even so, the DA’s office previously determined that its theory of criminal liability under New York law would not hold up — reasoning that could be discoverable by the defense if Trump were charged. Moreover, the case would rely on information from (a) Cohen, a witness with so much baggage that federal prosecutors, who decided not to pursue a campaign-finance case against Trump, refused to give him a cooperation agreement (which is why Cohen was sentenced to three years in prison after pleading guilty to several felonies), and (b) Clifford, who later unsuccessfully sued Trump for defamation and thus owes him about $300,000 in legal fees. But wait! The Times says the DA’s office is also trying, yet again, to squeeze former Trump Organization financial officer Allen Weisselberg, who has repeatedly spurned them on this subject. The DA’s office already had Weisselberg plead guilty to trivial tax counts and is having him testify in an ongoing trial against the Trump Organization (more on that below). If they larded on a bunch of new charges to pressure him to change whatever story he has already told, defense lawyers would have a field day discrediting that testimony.
But it’s Trump, so anything goes.
More to the point, it’s Bragg, so anything goes. He needs to atone for his previous dumping of the business-practices case against Trump as well as distract angry voters from rising crime in his jurisdiction. Targeting Trump serves both purposes in the short run, plus the addition of Stormy Daniels sexes up the effort and guarantees tabloid coverage. One has to think Michael Avenatti is smiling at the moment over Bragg’s strategy, but perhaps Bragg should keep in mind how all this worked out for Avenatti in the end, too.